JUDGMENT P.S.Rana, J. Present appeal filed against the judgment and decree passed by learned Civil Judge Karsog District Mandi HP in Civil Suit No. 103/99-93 decided on 30.06.2000 titled Soma Devi and others Vs. Balak Dass and others affirmed by learned Additional District Judge Mandi HP in Civil Appeal No. 105 of 2000 decided on 31.10.2002 titled Balak Ram and another Vs. Smt. Soma Devi and others. 2. Brief facts of the case are that Soma Devi and others filed suit for declaration and for possession as a consequential relief pleaded therein that plaintiff No.1 Soma Devi is legally wedded wife of Sh Khushal Singh. It is further pleaded that document of marriage was executed between Khushal Singh deceased and plaintiff No.1 on 5.12.1983 at village Suin illaqua Shumali Tehsil Karsog District Mandi in the presence of witnesses. It is further pleaded that Khushal Singh deceased agreed to maintain minor Savitri Devi also. It is further pleaded that Khushal Singh was the owner of suit property. It is further pleaded that after the execution of agreement of marriage between Khushal Singh and Soma Devi marriage was solemnized at village Beri Tehsil Sadar District Bilaspur according to custom and rites of the parties on dated 7.12.1983. It is further pleaded that after the solemnization of the marriage plaintiff and deceased Khushal Singh were living as husband and wife and lastly resided and co-habited at village Suin illaqua Shumali Tehsil Karsog from 8.12.1998 to 10.12.1998. It is further pleaded that Khushal Singh died on 16.12.1998 and her daughter minor namely Santosh was born on 28.12.1998 twelve days after the death of Khushal Singh out of the wedlock of Khushal Singh and Soma Devi. It is further pleaded defendants No. 1 and 2 are sons of deceased Khushal Singh born from his pre deceased wife and defendants No. 3 and 4 are sons of Sada Ram who is brother of Khushal Singh and proforma defendant No.5 Smt. Ram Dei is the daughter of Sada Ram. It is further pleaded that no relief is claimed against proforma defendants No. 3 to 5. It is further pleaded that Khushal Singh died on 16.12.1998 leaving behind plaintiffs along with defendants No. 1 and 2 as his legal heirs. It is further pleaded that no relief is claimed against proforma defendants No. 3 to 5. It is further pleaded that Khushal Singh died on 16.12.1998 leaving behind plaintiffs along with defendants No. 1 and 2 as his legal heirs. It is further pleaded that defendants No.1 and 2 in collusion with revenue staff got sanction illegal mutation of succession in their favour vide mutation No. 11 dated 7.3.1991. It is further pleaded that plaintiff No. 1 Soma Devi is recorded as wife of Khushal Singh and plaintiffs No. 2 and 3 are recorded as daughters of Khushal Singh in family register of pargana Panchayat. It is further pleaded that plaintiff No.1 be declared as widow and other plaintiffs be declared as daughters of deceased Khushal Singh and mutation No.11 dated 7.3.1991 be declared as null and void. It is further pleaded that it be declared that plaintiffs are legally entitled to succeed the estate of deceased Khushal Singh. 3. Per contra written statement filed on behalf of defendants No. 1 and 2 pleaded therein that suit is barred by limitation. It is further pleaded that plaintiffs have no locus standi to file present suit. It is further pleaded that suit in the present form is not maintainable. It is further pleaded that in fact Khushal Singh had married with Smt. Jiwanu who died about 12 years back. It is further pleaded that contesting defendants are the sons of deceased Khushal Singh and they are entitled to inherit the property. It is further pleaded that Khushal Singh died on 18.12.1988 and not died on 16.12.1998. It is further pleaded that plaintiffs have no cause of action to file present suit. Plaintiffs also filed replication. As per pleadings of the parties following issues were framed by learned trial Court on dated 10.3.2000 and 06.04.2000: 1. Whether plaintiff Soma Devi is widow and plaintiff Santosh and Savitri Devi are daughters of deceased Khushal Singh if so its effect? …OPP 2. Whether the mutation No.11 of dated 7.3.1991 is null and void as alleged? …OPP 3. In case issues No.1 and 2 are proved in affirmative whether plaintiffs are entitled to succeed the estate of deceased Khushal Singh as alleged?. …OPP. 4. Whether the present suit is barred by limitation? …OPD. 5. Whether the plaintiffs have no locus standi to file the present suit? ..OPD. 6. …OPP 3. In case issues No.1 and 2 are proved in affirmative whether plaintiffs are entitled to succeed the estate of deceased Khushal Singh as alleged?. …OPP. 4. Whether the present suit is barred by limitation? …OPD. 5. Whether the plaintiffs have no locus standi to file the present suit? ..OPD. 6. Whether the suit is not maintainable as alleged?. ..OPD. 6-A. Whether the present suit is not properly valued for the purpose of Court fee and jurisdiction? …OPD 6-B Whether the plaintiffs are estopped to file the present suit on account of their acts, conduct and deeds?. …OPD. 7. Relief ? 4. Learned trial Court decided issues No.1, 2 and 3 partly in favour of plaintiff No.2 Santosh and decided issue No. 4 in negative and decided issues No.5 and 6 partly in favour of plaintiff No.2 Santosh and decided issue No.6-A in negative. Learned trial Court decided issue No.6-B partly in affirmative but not against plaintiff No.2. Learned trial Court decreed the suit partly in favour of plaintiff No.2 Santosh and did not grant any relief in favour of plaintiffs No.1 and 3. 5. Feeling aggrieved against judgment and decree passed by learned trial Court Balak Ram and Amin Chand appellants filed Civil Appeal No. 105 of 2000 titled Balak Ram and another Vs. Smt. Soma Devi and others before Additional District Judge Mandi HP. Learned Addl. District Judge Mandi dismissed the appeal on dated 31.10.2002. 6. Feeling aggrieved against the judgment and decree passed by learned first appellate Court appellants filed RSA No. 21 of 2003 in the Hon’ble High Court of HP. On the pleadings of the parties the following substantial questions of law were framed on dated 10.1.2003: 1. Whether view taken by learned Additional District Judge that plaintiff No.2 is the daughter of plaintiff No.1 from late Khushal Singh is perverse when there is no evidence to this effect on record and evidence of conduct on this point is also absent?. 2. Whether view taken by learned Additional District Judge that plaintiff No.2 is the daughter of plaintiff No.1 from late Khushal Singh is perverse when there is no evidence to this effect on record and evidence of conduct on this point is also absent?. 2. Whether under Section 112 of the Evidence At, plaintiff No.2 will be deemed to be the daughter of plaintiff No.1 and Gulab Singh when the marriage of plaintiff No.1 and Gulab Singh has been established which has not been dissolved and plaintiff No.2 has taken birth during the subsistence of this marriage and there is no evidence of non-access of Gulab Singh and plaintiff No.1, but despite that two Courts below have erred in holding that plaintiff No.2 is daughter of Khushal Singh? 3. Whether two courts below have misconstrued, misinterpreted and misapplied Section 16 of the Hindu Marriage Act, 1955 in holding that plaintiff No.2 is entitled to inherit Khushal Singh?. 7. I have heard learned Advocate appearing on behalf of the parties at length and also perused the entire record carefully. 8. Parties produced following witnesses in support of their case. PW1 Smt. Soma Devi. PW2 Sh.Virender Kumar PW3 Sh.Jagat Pal PW4 Sh.Suman Kapoor PW5 Sh. Ishwar Singh PW6 Sh.Hari Saran DW1 Sh.Amin Chand DW2 Sh.Attar Singh DW3 Sh.Tej Singh DW4 Sh. Paras Ram 8.1. Parties also produced the following pieces of documentary evidence in support of their case. Sr.No. Description of document Exhibit 1 Agreement dated 5.12.1983 Ext PW1/A 2 Copy of voter list Ext PW1/B 3 Application dated 27.7.1993. Ext PW1/C 4 Copy of family Register. Ext.PW1/E 5 Copy of Jamabandi for the year 1989-90 Ext.PW1/F Oral evidence adduced by the parties: 9. PW1 Smt. Soma Devi has stated that she was married with Khushal Singh seventeen years ago and in this regard written document was also prepared. She has stated that Khushal Singh agreed that he would maintain her daughter and would also arrange her marriage. She has stated that document was written by Bhag Singh in the presence of marginal witnesses Harsaran and Nand Lal. She has stated that she marked her thumb impression on the document. She has stated that document was signed by Khushal Singh. She has stated that she has marked her thumb impression on mark-‘X’. She has stated that document was written by Bhag Singh in the presence of marginal witnesses Harsaran and Nand Lal. She has stated that she marked her thumb impression on the document. She has stated that document was signed by Khushal Singh. She has stated that she has marked her thumb impression on mark-‘X’. She has stated that thereafter marriage was solemnized through Hindu Priest and she also took seven steps at a place prepared for wedding ceremony. She has stated that 3-4 persons from her parents side participated in the marriage ceremony. She has stated that Mast Ram, Tula Ram and Labh Singh have participated in her marriage ceremony. She has stated that after completion of marriage ceremony she resided with Khushal Singh at village Beri and Patli. She has stated that after marriage her husband remained alive for about 5-6 years. She has stated that when her husband died she was pregnant. She has stated that she gave birth to Santosh after ten days of death of Khushal Singh. She has stated that marriage was also recorded in the Panchayat register. She has stated that after 3-4 months she went to Halqua Patwari to inquire the matter whether any entry was recorded in the family register or not. She has stated that contesting defendants have threatened to kill her. She has stated that she gave divorced to Gulab Singh. She has denied suggestion that prior to Gulab Singh she was married to Keshav Singh. She denied suggestion that she is the wife of Gulab Singh. She denied suggestion that no written document about marriage between her and Khushal Singh was executed. She denied suggestion that Santosh and Sumitra are not daughters of Khushal Singh. She denied suggestion that she has filed present suit just to grab immovable property of Khushal Singh. 9.1. PW2 Sh. Virender Kumar has stated that he was working as Panchayat Secretary since 1994 and brought the summoned record. He has stated that copy Ext. PW2/A is correct as per original record. He has stated that he has not recorded the entry of document Ext.PW2/A in revenue register. He has denied suggestion that he has recorded revenue entry in collusion with plaintiff No.1 Soma Devi. 9.2. PW3 Sh. Jagat Pal has stated that he was working as Secretary of Gram Panchayat Panjgai. He has stated that he brought summoned record i.e. family register. He has denied suggestion that he has recorded revenue entry in collusion with plaintiff No.1 Soma Devi. 9.2. PW3 Sh. Jagat Pal has stated that he was working as Secretary of Gram Panchayat Panjgai. He has stated that he brought summoned record i.e. family register. He has stated that he does not know that Smt. Soma Devi has demanded copy of family register on 27.7.1993. 9.3. PW4 Suman Kapoor Election Kanungo has stated that he brought the summoned record. He has stated that he was working as Election Kanungo in the office of SDM Bilaspur since 1988. He proved copy Ext.PW4/A. He has stated that Ext. PW4/A is correct as per original record. 9.4. PW5 Ishwar Singh has stated that Khushal Singh was his elder brother and he died in the year 1988. He has stated that plaintiff No.1 Soma Devi is known to him. He has stated that Soma Devi is the widow of Khushal Singh. He has stated that marriage of Khushal Singh with Soma Devi was solemnized in the year 1983 at village Beri Bilaspur according to Hindu rites and customs. He has stated that marriage was solemnized by Hindu Priest namely Ram Dittu who had died. He has stated that marriage function was also solemnized and performed during the night period and seven steps were also taken. He has stated that 50-60 persons came from parents side of Soma Devi in the marriage ceremony. He has stated that Jagat Ram, Tula Ram and brother of Tula Ram also took part in the marriage ceremony of Soma Devi. He has stated that Tula Ram is the real brother of plaintiff No.1 Soma Devi. He has stated that Khushal Singh had also given gold ornaments to plaintiff No.1 Soma Devi in marriage. He has stated that Hindu Priest also came from the parents side of Soma Devi from village Pangla. He has stated that when marriage of plaintiff No.1 Soma Devi was solemnized with Khushal Singh he was present and his house is situated at a distance of about two furlong 9.5. PW6 Hari Saran has stated that he is familiar with Khushal Singh and Soma Devi. He has stated that Khushal Singh had died. He has stated that documents qua marriage of Khushal Singh and Soma Devi was prepared which was written by Labh Singh. PW6 Hari Saran has stated that he is familiar with Khushal Singh and Soma Devi. He has stated that Khushal Singh had died. He has stated that documents qua marriage of Khushal Singh and Soma Devi was prepared which was written by Labh Singh. He has stated that he and Nand Lal were the marginal witness of the marriage. He has stated that he identified his signature which was written in red circle. He has stated that marriage document is Ext.PW6/A. He has admitted that Soma Devi was earlier married to Gulab Singh. He has stated that he does not know that prior to Gulab Singh plaintiff No.1 Soma Devi was married to Keshev Singh. He has stated that document was written in the house of Bhubia Ram who is the father of plaintiff N.1 Soma Devi. He has denied suggestion that he is deposing falsely because he is relative to plaintiff No.1 Soma Devi. 9.6. DW1 Ami Chand has stated that name of his father was Khushal Singh and name of his mother was Jiwanu Devi. He has stated that he has one brother namely Balak Ram. He has stated that Khushal Singh died on 18.12.1988. He has stated that his mother died 14-15 years prior to his father. He has stated that his father died at village Beri District Bilaspur. He has stated that his father did not remarriage after the death of his mother. He has stated that mutation of immovable property owned by Khushal Singh was sanctioned in favour of contesting defendants. He has stated that Soma Devi is the daughter of Bhubia Ram and wife of Gulab Singh. He has stated that she is residing in her parents house since 20-22 years. He has denied suggestion that Khushal Singh had re-married with plaintiff No.1 Soma Devi after two years of the death of his mother Jiwanu Devi. He denied suggestion that Khushal Singh had married with Soma Devi according to Hindu rites and customs. He denied suggestion that marriage was performed by Hindu Priest. He denied suggestion that seven steps were took as per religious ceremony. He denied suggestion that till death of Khushal Singh he resided with Soma Devi as her husband. He denied suggestion that Santosh was born after ten days of the death of Khushal Singh. He denied suggestion that death ritual of Khushal Singh was performed by Soma Devi. 9.7. He denied suggestion that seven steps were took as per religious ceremony. He denied suggestion that till death of Khushal Singh he resided with Soma Devi as her husband. He denied suggestion that Santosh was born after ten days of the death of Khushal Singh. He denied suggestion that death ritual of Khushal Singh was performed by Soma Devi. 9.7. DW2 Atter Singh has stated that Khushal Singh was known to him and his house was adjoining to the house of Khushal Singh. He has stated that wife of Khushal Singh namely Jiwanu Devi died 14-15 years ago. He has stated that Khushal Singh had two sons who are contesting defendants namely Balak Ram and Amin Chand. He has stated that death ceremony was performed by contesting defendants. He has stated that he did not see any wife in the house of Khushal Singh during his life time after the death of Jiwanu Devi. He has stated that he does not know that Khushal Singh had remarried with Soma Devi plaintiff No.1 after two years of the death of Jiwanu Devi. He has stated that he does not know that marriage document was also executed between Khushal Singh and Soma Devi on 5.12.1983. He has stated that he does not know that on 7.12.1983 Khushal Singh had married with Soma Devi plaintiff No.1. Self stated that he was in military service. He has stated that he retired from army in the year 1987. He has stated that he does not know that Santosh was born from the loin of Khushal Singh and Soma Devi after ten days of the death of Khushal Singh. 9.8. DW3 Tej Singh has stated that Bhubia is known to him. He has stated that Soma Devi plaintiff No.1 is the daughter of Bhubia. He has stated that Soma Devi was married with Gulab Singh. He has stated that Soma Devi is also wife of Gulab Singh as of today. He has stated that defendants are also known to him. He has stated that he did not see Soma Devi as wife of Khushal Singh. He has stated that he does not know that marriage of Soma Devi and Khushal Singh was performed after the death of Jiwanu Devi. He has stated that he does not know that divorce took place between Gulab Singh and Soma Devi. 9.9. He has stated that he did not see Soma Devi as wife of Khushal Singh. He has stated that he does not know that marriage of Soma Devi and Khushal Singh was performed after the death of Jiwanu Devi. He has stated that he does not know that divorce took place between Gulab Singh and Soma Devi. 9.9. DW4 Paras Ram has stated that Khushal Singh is known to him who is a resident of Bilaspur. He has stated that Jiwanu Devi was the wife of Khushal Singh. He has stated that suit land is situated at a distance of one furlong from his house. He has stated that suit land is in possession of Ami Chand. He has stated that he did not see Soma Devi as second wife of Khushal Singh. He denied suggestion that Khushal Singh had married with Soma Devi plaintiff No.1 after two years of the death of Jiwanu Devi. He has stated that he does not know that Santosh was born from the loin of Khushal Singh and Soma Devi. He has stated that Soma Devi is residing in her parental house. Finding upon Point No.1 substantial question of law framed by Hon’ble High Court of HP on dated 10.1.2003. 10. Submission of learned Advocate appearing on behalf of the appellants that finding of learned Additional District Judge that plaintiff No.2 is the daughter of plaintiff No.1 born from the loin of late Khushal Singh is perverse and contrary to evidence on record is rejected being devoid of any force for the reason hereinafter mentioned. PW1 Soma Devi has stated that Santosh plaintiff No.2 was born after ten days of the death of Khushal Singh. PW1 Soma Devi has stated in positive manner that she remained as wife of deceased Khushal Singh. She has stated that documents of marriage were executed between Soma Devi and Khushal Singh on dated 5.12.1983. She has stated that thereafter customary marriage was solemnized between Soma Devi and Khushal Singh. Even PW5 Ishwar Singh brother of Khushal Singh has stated that Khushal Singh had married with Soma Devi in the year 1983. He has stated that marriage was solemnized through Hindu Priest Ram Dittu and seven steps were took and religious ceremony also performed. Even PW6 Hari Saran has stated that document qua marriage between Khushal Singh and Soma Devi was prepared which was written by Labh Singh. He has stated that marriage was solemnized through Hindu Priest Ram Dittu and seven steps were took and religious ceremony also performed. Even PW6 Hari Saran has stated that document qua marriage between Khushal Singh and Soma Devi was prepared which was written by Labh Singh. He has stated that he and Nand Lal were the witness of marriage document Ext.PW1/A. It is proved on record that as per marriage document Ext. PW1/A and even as per record prepared by Election Department Ext.PW1/B Soma Devi has been shown as wife of Khushal Singh and even as per family register Ext.PW1/E placed on record Soma Devi has been shown as wife of Khushal Singh and Santosh Kumari has been shown as daughter of Khushal Singh. Even as per birth certificate issued by the Panchayat mark ‘X’ placed on record it has been mentioned that Santosh Kumari was born on dated 28.12.1988 and the names of her father and mother have been shown as Khushal Singh and Soma Devi. Above stated documents have been prepared by public official in discharge of official duty. Defendants did not adduce any positive, cogent and reliable evidence on record in order to rebut the above stated documents. In view of oral testimony and in view of documentary evidence placed on record it is held that view taken by learned Additional District Judge that plaintiff No.2 Santosh was born from the loin of plaintiff No.1 Soma Devi and Khushal Singh is based upon correct appreciation of evidence. It is held that findings of the learned Additional District Judge that plaintiff No.2 was born from the loin of Khushal Singh and Soma Devi are not perverse. Hence point No.1 of substantial question of law is decided against the appellants. Finding upon Point No.2 substantial question of law framed by Hon’ble High Court of HP on dated 10.1.2003. 11. Submission of learned Advocate appearing on behalf of appellants that under Section 112 of the Evidence Act plaintiff No.2 will be deemed to be daughter of plaintiff No.1 and Gulab Singh when marriage of plaintiff No.1 and Gulab Singh was not proved to be dissolved is also rejected being devoid of any force for the reason hereinafter mentioned. It is proved on record that customary marriage ceremonies between plaintiff No.1 and deceased Khushal Singh were performed. It is proved on record that customary marriage ceremonies between plaintiff No.1 and deceased Khushal Singh were performed. It is proved on record that document of marriage Ext.PW1/A was executed between deceased Khushal Singh and Soma Devi on dated 5.12.1983. It is proved on record that as per oral testimony of PW1 Soma Devi, PW5 Ishwar Singh and PW6 Hari Saran marriage ceremony was also performed according to customary law. It is also proved on record that Soma Devi was also recorded as wife of Khushal Singh by Election Department in document Ext.PW4/A prepared by public official in discharge of official duty. It is also proved on record that Soma Devi was also shown as wife of Khushal Singh in family register Ext. PW1/E prepared by public official in discharge of official duty and same are relevant fact under Section 35 of the Indian Evidence Act. It is also proved on record that thereafter Soma Devi plaintiff No.1 resided as wife of Khushal Singh in his house. It is well settled law that presumption under Section 112 of the Indian Evidence Act can be rebutted by way of oral and documentary evidence. It is held that presumption under Section 112 of the Evidence Act is rebutted by way of positive cogent and reliable evidence adduced by the plaintiffs cited supra. Hence point No.2 of substantial question of law is decided against the appellants. Finding upon Point No.3 substantial question of law framed by Hon’ble High Court of HP on dated 10.1.2003. 12. Submission of learned Advocate appearing on behalf of appellants that finding of the learned trial Court and the finding of learned first appellate Court that plaintiff No.2 Santosh is entitled to inherit the property of Khushal Singh are also contrary to law and contrary to facts is also rejected being devoid of any force for the reason hereinafter mentioned. It is proved on record that Soma Devi remained as wife of Khushal Singh after execution of marriage document Ext.PW1/A placed on record dated 5.12.1983. It is also proved on record that plaintiff No.2 Santosh was born from the loin of plaintiff No.1 and she resided with deceased Khushal Singh as his wife. It is also proved on record that Soma Devi earlier solemnized marriage with Gulab Singh. There is no evidence on record to prove that Soma Devi obtained divorce from Gulab Singh from competent Court of law. It is also proved on record that Soma Devi earlier solemnized marriage with Gulab Singh. There is no evidence on record to prove that Soma Devi obtained divorce from Gulab Singh from competent Court of law. There is also no evidence on record to prove that marriage between Soma Devi and Gulab Singh was dissolved by way of customary divorce. No document of customary divorce between Soma Devi and Gulab Singh placed on record. Hence it is held that marriage between Soma Devi and Khushal Singh was illegal marriage in the absence of decree of divorce between Soma Devi and Gulab Singh and in the absence of customary divorce between Soma Devi and Gulab Singh. It is well settled law that illegitimate child is legally entitled to inherit the property as per Section 16 of the Hindu Marriage Act 1955. It is held that plaintiff No.2 Santosh is legally entitled to inherit the property of Khushal Singh under Section 16 of the Hindu Marriage Act 1955 because Santosh was born during the subsistence of illegal customary marriage of plaintiff No.1 Soma Devi with Khushal Singh. It is also well settled law that Courts are under legal obligation to protect the interest of the minor. It was held in case reported in (1996) 2 SCC 567 titled Gurnam Kaur and another Vs. Punam Singh and others that illegitimate child has a right to succeed to the property of father as per Section 16 (1) of the Hindu Marriage Act 1955. Also see (2003) 1 SCC 730 titled Jinia Keotin and others Vs. Kumar Sita Ram Manjhi and others. 13. In view of the above stated facts it is held that judgment and decree of learned trial Court and judgment and decree of learned first appellate Court are based upon proved facts and are in consonance with law. It is held that there is no illegality in the judgment and decree passed by learned trial Court and affirmed by the learned first appellate Court. It is further held that no mis-carriage of justice has been caused to the appellants in the present case. Hence judgment and decree passed by learned trial Court and judgment and decree passed by learned first appellate Court are affirmed. Parties are left to bear their own costs. All pending application(s) if any are also disposed of.